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1992 DIGILAW 184 (GUJ)

BHAIJIBHAI MADHABHAI BHOI v. STATE

1992-06-22

S.M.SONI, V.H.BHAIRAVIA

body1992
SONI, J. ( 1 ) ). [his Lordships after stating the facts of the case, further observed :] ( 2 ) ). We will first consider as to whether any prejudice is caused to the appellant - accused No. 1 by engaging common Advocate for all the accused and if yes, what is the effect on the trial ? We are of the opinion that it is not the concern of any Court either to direct or to suggest directly or indirectly that engagement of a common Advocate for all accused in the facts and circumstances of a particular case is not proper and is likely to cause prejudice to their defence. It is the domain of the accused as to whom they should engage and whether they should engage common advocate for all the accused or separate one. It will not be proper on the part of the Court to suggest anything as to the engagement of an advocate. By engagement of common Advocate for all the accused, assuming that any prejudice is caused, then that prejudice is neither caused by any procedural defect nor by any act of the prosecution nor by the conduct of the trial by the Court. Therefore, even if any prejudice is caused as we will show that no prejudice is caused considering the defence, then also the argument cannot be considered in the instance case. It was not known as to what was the defence when the trial began. It was also not known as to how and what will be the evidence before the Court. It can only be presumed that case of the prosecution will be as per the chargesheet. ( 3 ) ). The prejudice alleged to have been caused by engaging common advocate is with respect to giving up the case that accused Nos. 4 to 7 have also assaulted the deceased with sticks. In the evidence lead by prosecution there is no reference of accused Nos. 2 to 7 though according to the learned Counsel for the appellant they are alleged to have assaulted the deceased as per the police papers and the charge framed therefrom. It will not be improper to state at this juncture that the learned Advocate, without involving accused Nos. 2 to 7 though according to the learned Counsel for the appellant they are alleged to have assaulted the deceased as per the police papers and the charge framed therefrom. It will not be improper to state at this juncture that the learned Advocate, without involving accused Nos. 2 to 7 and without damaging their defence could have brought the fact that the case before police was that deceased was also assaulted by accused. This fact could be brought by making such suggestion either in the evidence of investigating officer or the other witnesses. It could have been suggested in their cross-examination that in the course of investigation it also revealed that accused Nos. 2 to 7 also have assaulted the deceased. Such a suggestion if made would not amount to an admission on the part of the defence Advocate so as to prejudice the case of accused Nos. 2 to 7. Thus, if something could not be brought on record, though it could have been, it cannot be said that it prejudiced the case of one of the accused. It will be proper to say that it is lack of art to cross-examine the witnesses. Advocate engaged was the best person to take care of his clients. It is also not known that the Advocate engnged was senior or junior. Every Advocate is presumed to be competent to conduct the trial or legal proceedings for which he is engaged. Thus, in our opinion, there is no substance in the contention of Mr. Vakil that the case of accused no. 1 is prejudiced because of engagement of common Advocate for all the accused and/or by not bringing the fact of the prosecution case of assault by accused Nos. 2 to 7 on the deceased as it transpires from the charge. ( 4 ) ). Mr. Vakil contended (hat the fact of assault by accused Nos. 2 to 7 should have been taken notice of by this Court from the charge which is framed on the basis of police papers. In our opinion, such inference as to assault by some of the accused more particularly by accused Nos. 4 to 7 cannot be taken note of because the charge is only a direction to the accused as to what allegation he has to meet with and what the prosecution has to prove. In our opinion, such inference as to assault by some of the accused more particularly by accused Nos. 4 to 7 cannot be taken note of because the charge is only a direction to the accused as to what allegation he has to meet with and what the prosecution has to prove. Simply because a charge is framed involving certain other accused, the prosecution is not debarred from giving up those allegations against any or all of those accused persons. Framing of charge does not lead to an inference or to presume that the act alleged in the charge is committed by the accused referred therein. Thus, in our opinion, there is no substance in the contention of Mr. Vakil that the prejudice is caused by not involving accused Nos. 2 to 7 by the eye witnesses P. W. 1 and P. W. 2, though it was their case before the Police. ( 5 ) ). This brings us to appreciate the contention of Mr. Vakil that mark a should have been treated as F. I. R. Mr. Vakil contended that Vardhi Exh. 40 should not have been treated as F. I. R, as held by the Court. Mr. Rava1, learned A. P. P. objects to this contention raised by Mr. Vakil alleging that the defence cannot be permitted to approbate and reprobate or blow hot and cold at a time. Mr. Rava1 contended that before learned Addl. Sessions judge it was the defence who contended that mark A cannot be treated as an F. I. R, as it being a statement recorded by the Investigating Officer in the course of investigation. Mr. Rava1 contended that it was argued by the defence there that Vardhi Exh. 40 is the information of cognizable offence disclosed to the Police Station Officer and it being first in time than that of mark A should have been treated as F. I. R. Mr. Rava1 contended that the learned Addl. Sessions Judge after hearing the parlies have accepted the contention of defence and has treated Vardhi Exh. 40 as the F. I. R. In view of these facts it is now not open to the learned Counsel for the appellants to contended before this Court that mark A should have been treated as f. I. R, and not the Vardhi Exh. 40. 40 as the F. I. R. In view of these facts it is now not open to the learned Counsel for the appellants to contended before this Court that mark A should have been treated as f. I. R, and not the Vardhi Exh. 40. It is true that in view of the contention raised by the defence before the learned Addl. Sessions Judge, Vardhi exh. 40 was treated as F. I. R, and it was denied to treat mark A as F. I. R. However, the question is whether learned Counsel for the appellant is estopped from raising this contention at this stage in appeal more particularly when the question raised is a question of law to be derived from the set facts. It is now settled law that there an be no estoppel or acquiescence against law. If on a wrong appreciation of set of facts, if a conclusion is arrived at, the person aggrieved or who initially contended the same cannot be estopped from saying that the conclusion arrived at from the set facts is not a correct one. Thus, the doctrine of estoppel has no application to a proposition of law. The doctrine of estoppel refers to a belief in a matter of fact. In this case fact has remained the same that Vardhi Exh. 40 was sent to the officer in-charge of the Police Station earlier in time than the statement recorded by the Investigating Officer which is mark A. Therefore, in our opinion, Mr. Vakil is not estopped from raising this contention before this Court. ( 6 ) ). The question therefore is whether mark A should be treated as the f. I. R, as contended by Mr. Vakil or Vardhi Exh. 40 should be treated as F. I. R, as held by the learned Addl. Sessions Judge. Any information recorded under sec. Vakil is not estopped from raising this contention before this Court. ( 6 ) ). The question therefore is whether mark A should be treated as the f. I. R, as contended by Mr. Vakil or Vardhi Exh. 40 should be treated as F. I. R, as held by the learned Addl. Sessions Judge. Any information recorded under sec. 154 (1) of the Criminal Procedure Code (code for short) is the F. I. R. Section 154 (1) reads as under :"every information relating to the commission of a cognizable offence, if given orally to an officer in-charge of a Police Station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf. "now, to treat the information recorded under Sec. 154 (1) as the F. I. R. that information must be (1) relating to the commission of cognizable offence and be given orally or in writing to the officer in-charge of a Police Station and must be signed by the person giving it. Now, the question is whether a particular information relates to the commission of cognizable offence. Where the information is such a vague and indefinite character that the Police Officer in-charge of the Police Station cannot start an investigation on the basis of that information but he may reasonably require more information before doing so, the said information recorded in our opinion cannot be said to be the f. I. R. Thus, the information if it is vague and indefinite in character does not make it incumbent on the officer in-charge of the Police Station to start an investigation, said information cannot be said to be the F. I. R. In the present case Vardhi Exh. 40 was received by the officer in-charge of the Police Station at the earliest. Exh. 40 reveals as under : there has been a quarrel at village Pati and there is a murder and there is likelihood of it being engraved. This information in our opinion discloses the fact that there is quarrel and the murder has taken place. 40 was received by the officer in-charge of the Police Station at the earliest. Exh. 40 reveals as under : there has been a quarrel at village Pati and there is a murder and there is likelihood of it being engraved. This information in our opinion discloses the fact that there is quarrel and the murder has taken place. If an information received to the effect that a murder has taken place, it by itself discloses commission of cognizable offence. On receipt of this information, the P. S. I, who was officer in-charge of the Police Station after recording the same in the book kept by such Police Officer proceeded to the village Pati and in the course of investigation on the basis of that information mark A is recorded. The question is whether information received on telephone and recorded in book kept by such Police Officer is of a vague and indefinite character that it did not make incumbent on the officer incharge police Station to start an investigation ? The very fact that on receipt of the information and entering the same in the book kept by such officer, the officer has proceeded for village Pati and proceed with the investigation. Information received and recorded vide Exh. 40 cannot be said of a vague and indefinite character. Section 154 (1) of the Code contemplates for an information relating to the commission of a cognizable offence. Information conveyed and recorded vide Exh. 40 does convey information relating to the commission of cognizable offence and the officer in-charge of Police Station has accordingly recorded it. Thus, the information recorded at Exh. 40 is the F. I. R. and we do not find any reason to interfere with the finding recorded by the learned Addl. Sessions Judge. .